*1 Johnson, Cheryl H. L. Plaint Robert JOHNSON and iffs-Appellants,† CORPORATION, Sperry ALLIS-CHALMERS Corporation, Defendants-Respondents. Rand Appeals
Court of December 1989.—Decided No. 89-0649. Submitted on briefs March 1990. (Also 657.) reported in 455 N.W.2d granted. Petition to review † *2 plaintiffs-appellants For the the cause was submit- on ted the briefs of C. Eustice, John Albert of Brill & 5.C. of Sun Prairie. defendant-respondent Sperry Corpo-
For the Rand ration the cause was submitted on the brief of Michael J. Gonring Brady Quarles & of Milwaukee. defendant-respondent
For the Allis-Chalmers Cor- poration the cause was on submitted the brief of Bruce Huibregtse Bensky D. N. Stafford, and Janice Rosen- baum, Rieser & Hanson of Madison. Dykman Sundby, C.J., Eich,
Before and JJ. (collec- Cheryl EICH, C.J. and Johnson Robert tively, "Johnson") appeal judgment from a and an order dismissing products liability personal injury their action Corporation Sperry Allis-Chalmers and Rand Corporation for their failure to with the trial scheduling court's and issue orders. The imposing whether the trial court abused its discretion violations. Because we see sanction for the dismissal as a judgment abuse, and order. no we affirm telling, long facts, are not serious while comprise chronology. dispute. essence, Robert involving injured in a trac- a farm accident Johnson was 20,1979. on December Just short and bale handler tor years later, 17, 1982, he and his wife on December three tractor, Allis-Chalmers, the manufacturer of the sued Sperry handler, Rand, the manufacturer of the bale liability damages grounds seeking on of strict to recover negligence. Sperry pursued During the first half discov- ery which, motions an of various items after two compel compliance, apparently completed order to year. mid-August of that *3 11, 1983, a On November Allis-Chalmers served production demand for response of documents on Johnson. No forthcoming, although was Johnson's counsel attorney inspect permitted some Allis-Chalmers' 5, 1983, On December materials. ney requested Allis-Chalmers' attor- respond to the The Johnson demand. request separate writing renewed in on three occa- was January January 5, 1984, 3, 1985, sions between and any response without from Johnson.
Following pretrial 10, a conference on December requiring 1985, the court issued order an Johnson to expert provide name witnesses and an itemization of special damages by February 1,1986. Allis-Chalmers and Sperry expert by 1, were to name their witnesses June completed prior 1986, and all was to be to a pretrial October, second conference scheduled for 1986. February days 3, 1986, On two after the deadline for experts Johnson's of disclosure and itemization of dam- ages, desig- Johnson of submitted a list thirteen names "expert nated as witnesses" and of a statement "non- particulars special exclusive damages." as The latter doc- ument was a brief list of various categories damage. Alongside each item a figure dollar preceded by the phrase . "at least. .." 9, 1986,
Between February April and Allis-Chal- mers' made counsel five attempts unsuccessful to sched- deposition ule a liability Johnson's expert. On April attorney Johnson's indicated that he would not make 12,1986 the witness available until May than three —less weeks before the date on which Allis-Chalmers Sperry required were experts. to disclose their own Con- sequently, companies both expert moved to extend their witness deadlines from June thirty to a date days after produced experts Johnson his deposition. motion requested directing also an order Johnson to provide specific special damages. itemized list his April The court heard the motion on granted by 18,1986, it issued an order on June but made April 22, effective as of 1986.
Among required other things, order Johnson to: (1) defendants, 5,1986, provide by May with a list of expected trial, testify all medical witnesses together (none 30) dates" with "three alternative later than June (2) deposition; on which would be available for . provide "specific information ... for each . . item 15,1986. by May special damages" Johnson failed to the indi- order *4 Then, May cated dates. on his counsel sent lawyer a setting deposition Allis-Chalmers' letter dates experts. five of thirteen for No alternative dates were despite provided for several of witnesses several in the requests by ensuing Allis-Chalmers' counsel months. 5, 1986, Sperry
On and Allis-Chalmers November seeking filed motions dismissal of action John- comply appli- son's failure to with the court's orders and procedural cable statutes rules. The motion asserted response the defendants still had received no to 11, 1983, Allis-Chalmers' November demand for docu- ments, any response nor to the court's order requiring specific regarding more information the claimed dam- a ages and list medical trial witnesses. 13,1987, July
On the court issued a finding decision prior that Johnson had violated the orders. The court concluded, however, that "the sanction of . . dismissal. sanction," point is at this too drastic a and instead set a hearing compel discovery date for further to and to con- attorney sider an award of reasonable fees Sperry hearing adjourned Allis-Chalmers. The to allow the out, parties to work matters which apparently failed do, passed and several more months with response no March, 1988, from Johnson to various Sperry orders. again moved for dismissal.
Allis-Chalmers did not in join the motion because it had in the meantime filed for bankruptcy and further proceedings in this stayed by action had been the bank- ruptcy motion, Sperry's court.1 After the on hearing but decision, before a provided Johnson both defendants hundred pages several of documents purportedly dealing special damage By time, with his claims. this nearly years passed two had pro- since the deadline for viding specified this information the 1986 order. September On granted the trial court Sperry's motion to dismiss. The began noting seeking this was the second motion dismissal for Johnson's discovery failure with the same Then, discussing purposes policies orders. after 1During portion parties apparently of this time had agreed abeyance pending to hold ascertainment of Allis-Chalmers' status the case. *5 pretrial
underlying noting and "[t]wo scheduling orders have been breached with [Johnson] no given reason requested or modification until the their brought dismiss]," defendants motion the court [to concluded:
This court reluctant to dismiss lawsuits for nominal impose technical reasons. It is to loath sanc- beyond tions that have effects those to counsel. however, point, There is a further which tolerance regarding parties be actions cannot extended. [sic] plaintiffs
The actions have been neither They nominal nor technical. been have substantial egregious justification and for which has not provided. been 26, 1988,
On October after bankruptcy stay lifted, Allis-Chalmers filed its own motion to for dismiss same reasons forth Sperry's set earlier motion. At time, about the same Johnson the court moved to recon- Sperry hearing sider decision. At the on the motions 20, 1989, January provided on Johnson the defendants 11, a formal to response Allis-Chalmers' November 1983, request production of documents. court,
At hearing noting the conclusion of the position Sperry that Allis-Chalmers was the same as heard, been granted had when its dismissal motion was Allis-Chalmers' to denied motion dismiss and Johnson's Sperry motion for reconsideration of the decision. On March court written order entered a con- firming began by discussing the oral decision. earlier failed findings its Johnson had applicable procedural with the earlier orders statutes 10, and ruled that he had also the December violated April relating expert orders wit- depositions special damages. ness and disclosure of Then, noting that Johnson had "failed show a clear *6 excuse" for the violations and had justifiable "made any attempt no at time to obtain an extension or modifi- order[s]," entry . . . cation of the court directed dismissing the action both judgment defendants. dispute It is trial have beyond courts authority to impose including dismissal —for sanctions — prosecute, comply procedural failure to failure to with rules, obey or for failure pretrial discovery statutes or 805.03, 804.12(2)(a)3, scheduling orders. Secs. 802.10(3) (d), Whether appropriate Stats. sanctions are and, so, particular in the first instance if the choice of a given sanction a case are matters within the court's "Thus, we examine . . . . . . discretion. whether appellant's court abused its discretion in dismissing complaint comply for failure to with the pre-trial orders 725, 731, Trispel Haefer, . . .." v. 89 Wis. 2d 279 N.W.2d 242, (1979). 245 discretionary
We will not reverse a
if
determination
the record shows that
was in
exercised
discretion
fact
perceive
and we can
a reasonable basis for the court's
Brosamle,
658, 667,
Prahl v.
142
decision.
Wis. 2d
420
(Ct.
1987).
372,
App.
N.W.2d
376
The exercise of discre-
requires
something
unexplained
tion
more than an
LIRC,
Argonaut
between
Ins. v.
choice
alternatives.
385, 391,
(Ct.
1986).
Wis. 2d
392 N.W.2d
contemplates
reasoning process considering
The term
a
a
leading
the facts
record and
to conclusion a reasona-
Hartung
Hartung,
judge
ble
could reach.
102 Wis. 2d
(1981).
306 N.W.2d
20-21
Where we can
pro-
ascertain that the trial
has
in such a
engaged
reasonable,
cess,
Indeed,
we will affirm.
result
general
as a
we look for reasons
rule
to sustain
trial
Prahl,
discretionary determination.
142 Wis. 2d
court's
at
Because dismissal
is a harsh sanction for violation
orders,
of procedural
however,
rules and
additional con
play.
siderations come into
Dismissal will be granted for
failure to obey pretrial
comply
orders or to
procedu
ral
only
statutes and rules
in "extreme circumstances" or
in cases of "egregious
Trispel,
conduct."
The trial court dismissed Johnson's case for viola- tion of two orders: one him requiring to expert disclose witnesses specifically describe his special damages; and another him requiring provide to alternative dates for the defendants' deposition experts. addition, of his appears it that he any never made response formal to request until, Allis-Chalmers' for documents over four years request, after the he facing was a second motion to dismiss.
In deciding the earlier motion to dismiss for John- son's failure to comply discovery with rules pretrial orders, the trial court agreed with Allis-Chalmers and Sperry that violations had occurred. The court stated, however, that rather than dismiss action it would instead attorney award reasonable fees to the defendants and allow Johnson a second to bring chance compliance. clear, himself into warning court's and we believe that Johnson's unexplained failure to take advantage reprieve under the circumstances of this case amounts to "egre- the kind of "extreme" or gious" conduct appropriate which dismissal is an sanction. however, argues,
Johnson
it is an abuse of dis-
cretion to order
in
dismissal
the absence of a showing by
the defendants
"they
have
unfairly
been
affected in
ability
try
case,"
their
citing Jenzake
City
Brookfield,
108 Wis. 2d
322 N.W.2d
(Ct.
1982). In
words,
other
he contends that
defendants must
prejudice
show
in order
gain
dismis-
sal for
pretrial
violation of the
orders. Jenzake was a
case
which
plaintiff
had "concealed"
a wit-
ness —she failed to
expert
and,
disclose an
relying on
—
involving
cases
similar witness
violations,
disclosure
we
affirmed the trial court's denial of the motion to exclude
the witness holding that it was not an abuse of discretion
"
to do so where the moving party had not
requested] a
continuance" or shown "how the
unfairly
concealment
party's
affects the
ability
adequately
try the case." Id.
In the plaintiff sued Ford injuries claimed to have by been defectively caused a designed tie rod his automobile. plaintiff When the pro- failed to duce the tie inspection rod for by Ford, and testing the company sought and obtained an directing order him to produce it. compliance When was not forthcoming, Ford here, moved to dismiss. As the trial court declined to dismiss and production instead extended the date with a warning that dismissal would if follow the extended deadline and, was not met. When it was not again as here, when filed a Ford second motion to dismiss for order, comply failure to with the the court the granted motion. supreme upheld court the dismissal relying pri-
marily on
Hockey League
National
Metro. Hockey
Club,
(1976),
If expediting proceedings matters of court assuring prompt proper justice administration agenda are to be more than mere matters on at judicial workshops, or bar the lead of the association high upholding nation's is to be followed where, dismissals on the merits as trial court Case, Hockey League found in the National and we us, see there been a "callous case before has disregard by plaintiff responsibilities" owed plaintiffs adversary counsel the court and to parties. Id. N.W.2d at 515.
We believe same is true here. Johnson went through one on a motion to for his hearing dismiss fail- court, ure to with the orders and the trial show- ing leniency, a chose lesser sanction than dismissal. To us, "warning" that is a from indistinguishable given specificity the trial court in greater with somewhat Furrenes, And, Furrenes. as in Johnson never also sought orders. such modification extension of the *9 353 situation, not we do believe a defendant must show prevail in is prejudice order to on a motion to dismiss.2 It enough integrity system and that the court's ability its adjudicative to exercise administrative implicated in functions a reasonable manner are culpable party's conduct. "It is considered well estab has the power lished that a court inherent to resort to a orderly dismissed of an action the interest of adminis justice. general judicial tration control of the is business before it essential if the court it is to v. Casey King Corp., function." Latham & 23 Wis. 2d 311, 314, 127 (1964). N.W.2d 226 "The dismissal an action where counsel fails impor an pretrial tant term of a order without justifiable excuse an if not extreme measure courts trial are to be encouraged expedite to facilitate and the trials of their Onchuck, Heating, Carlson cases." Inc. v. 104 Wis. 2d (Ct. 1981). N.W.2d Finally, Johnson asserts he should not be penalized attorney's for his to respond failure to the court's orders. He contends that award of an fees and costs attorney his should suffice and that he should not suffer dismissal of his for his lawyer's action shortcomings. It is an argument engenders some sympathy, as is dissenting opinion. evidenced But do not we believe it should control. so,
2 Even support there prejudice. was evidence of of its dismiss, motion to Allis-Chalmers an submitted affidavit indicat ing that since years the time of Johnson's accident some nine plant earlier its employees, tractor had been closed all includ ing engineers expected trial, testify several had retired or away, moved regarding design, and all records testing manufacture of the tractor involved the accident were no longer in custody its or control. *10 litigant may
Even where a be "blameless" that he or she not participate did in the lawyers' decisions on discovery or matters lacked knowledge of the manner in lawyers proceeded, which the we would be reluctant to that, cases, hold in all action the should be allowed to only monetary continue with some against sanctions the lawyers.
First, we believe such rule nullify provi- a would the sions of statutes governing pretrial various and rules practice permit court, that the trial in the exercise of its discretion, impose proce- to the sanction of dismissal for dural say nothing many violations —to cases defin- ing powers the court's inherent to control the efficient adjudication of cases before If coming remaining it. aloof attorney's from his her or conduct of the will case insure a ill party against any from such effects failures —if sanc- itself, affecting tions the barring case such as the testi- mony prohibiting of undisclosed witnesses intro- duction deliberately of evidence from withheld discovery, may imposed never rely be and we must imposition against party's instead on the of costs a law- yer as means ensuring compliance the sole with court procedural orders and rules —then we with the agree Sperry's assertion in brief that such orders rules "toothless," subject would be would be to avoid- by simple party personally ance a claim that lawyer's his or It is for unaware of her actions. this ''[p]arties by reason the acts are deemed bound attorneys their to have 'notice of all are considered facts, charged upon notice which can be the attor- '' ney.' Corp., Gaertner 880 131 Wis. 2d 389 (Ct. 1986), v. Wabash quoting N.W.2d Link Co., (citation omitted). (1962) R. 370 U.S.
Second, a monetary lawyer sanction party ability try no the case has answer to whose offending lawyer's been affected conduct. As we noted, that, have there was evidence in this case years passed as a result of Johnson's failure com- orders, ply with the plant Allis-Chalmers’ had been closed all employees many its of whom would — addition, be witnesses in the case —had scattered. all relating records the manufacture of the equip- ment longer pos- involved the accident were no in its *11 or party's session control. ability try Where the to the implicated case is so an award of motion costs is an inadequate remedy. realize, suggests,
We as the dissent it is not always satisfactory the most answer to party leave a to malpractice actions, or other remedies for counsel's but on the facts of say this case we cannot the trial court its in deciding abused discretion itas did.
By the
Judgment and order affirmed.
Court. —
SUNDBY,
(dissenting).
J.
For
the
reasons
expressed my
dissents in Monson v.
in
Family
Madison
Institute,
al.,
et
(Wis.
No.
unpublished slip
89-0314
op.
Ct. App.
and Schneller v. Mary's
1990),
St.
March
Center,
al.,
Hospital
et
155 Wis. 2d
I would this remand to case the trial court to deter- (1) history mine: the of the Johnsons' and their counsel's dilatoriousness, including delay whether the was inten- tional, egregious faith; (2) bad the extent of the personal (3) Johnsons' responsibility delay; for the (4) defendants' delay; contribution to the whether or Johnsons their counsel were warned the court that delay dismissal; (5) further could result in the prejudice dismissed; (6) to the if defendants is not action (7) of a prejudice; harshness dismissal with effectiveness other sanctions.
I—I trial court dismissed the Johnsons' action with 802.10(3)(d), pursuant 804.12(2) prejudice to secs. 805.03, 802.10(3)(d) provides that, Stats. Section "Viola- tion of scheduling subject order is to s. 805.03." Section 805.03, empowers the trial court which the action is just," to make such orders are pending "as for failure of any prosecute claimant to or of any party failure to com- ply procedure any with the rules of obey civil order court, but including not limited to orders author- 804.12(2)(a). 804.12(2), permits ized under sec. Section pending which an action is make such regard orders with to failure make "as are just,” including dismissing an order the action.
The Judicial Committee's Council Note to sec. 805.03, Stats., states: section, generally
This
on
based
Federal Rule
*12
41(b), replaces s.
of
269.25. Because
harshness
sanction,
a dismissal under this section should be
appropriate only
egregious
of
con-
considered
cases
Co.,
See Link v.
R.
by
Wabash
a
82 S.
duct
claimant.
1386,
626,
(1962);
Ct.
370
Wis. Stats. Ann. sec. 805.03 804.12, Stats., appear Section does not be based 805.03, on procedure, a federal rule of civil as is sec. Stats. The to sec. Judicial Committee's Note Council provides strong 804.12 states: new section sanc- "This discovery. parties resisting Any party tions who discovery seeks to or full candid incurs evade thwart 357 risk of . consequences serious . Wis. Ann. Stats. (West 1977). sec. 804.12
Those
consequences" may
"serious
include dismis
However,
prejudice.
finding
sal with
of bad faith or a
responsibilities"
necessary
is
disregard
"callous
support dismissal on the
for
merits
failure to make dis
Co.,
covery.
260,
v.
Furrenes
Ford Motor
79 Wis. 2d
255
(1977).
noncompliance
N.W.2d
Dismissal
for
with
pretrial
appropriate only
orders
of egregious
cases
Englewood Apartments
conduct.
Partnership v. Grant &
Co.,
34, 349
(Ct.
1984).
119 Wis. 2d
App.
N.W.2d 716
See
Dyson Hempe,
792,
also
140 Wis. 2d
A trial may dismiss an action failure to if prosecute only the claimant's has egre- conduct been or in gious Trispel 725, bad faith. v. Haefer, 89 Wis. 2d (1979). 279 N.W.2d Despite these standards stringent limiting the use of dismissal, the extreme sanction majority here that in holds order to demonstrate an abuse discretion must "a justifiable Johnsons show clear and excuse" for their failure to comply with the court's orders. The majority this from Trispel, derives standard 89 Wis. 2d 733-34, at at 245-46.1 N.W.2d agree conclusion,
1 I majority's majority opinion with the *13 "egre the standards of "extreme circumstances" gious apply conduct" prejudice motions to dismiss with for
358 clear-and-justifiable-excuse The standard was not 805.03, Stats., Trispel derived from sec. as would appear hold, 269.25, Stats., but from decisions applying sec. which by was discarded adopted court when it sec. 805.03. I conclude that the clear-and-justifiable-excuse which is imposed party burden on a aggrieved by the action, trial court's dismissal of his or her robs the egre- faith, bad gious, disregard or callous any standards of substance, except as grace bestowed of the trial An appellate court. give court cannot substance to these appellate standards because effectively review is barred by the clear-and-justifiable-excuse insurmountable standing barrier. clear-and-justifiable-excuse
The standing require- Supreme ment was removed when the Wisconsin Court 805.03, Order, adopted 585, sec. Stats. S. Ct. 67 Wis. 2d 1,1976. eff. Jan. We now look to the decisions of the courts, federal to the pattern extent that show a construction, persuasive authority construing as sec. 805.03, Stats., because that rule based on federal rule 41(b). The New Wisconsin Rules of Lowe, Clausen and 801-803, Civil Procedure: Chs. Marq. 59 L. Rev. 1 Vorwald, (1976); Neylan 124 Wis. 2d (1985). 648, 656 The federal decisions establish N.W.2d 41(b) pattern a clear of construction of federal rule as applied to motions to dismiss a claimant's action with timely comply pretrial failure to orders as well as motions to prosecute. majority dismiss for failure to The of the federal courts apply principles the same motions to dismiss for standards to procedural they apply violations as motions to dismiss for Failure to Pretrial See Dismissal Attend prosecute. failure to for Stages Preparatory and the Use Sanctions at Conference Comment, Involuntary Litigation, (1963), L.J. 819 72 Yale Delay: Plight, Dismissal Disobedience or 34 U. Plaintiffs (1966-67). L. of Chi. Rev. *14 prejudice. require These decisions trial courts to consider I the factors would have the trial court consider on Institute, Family al., See Monson v. Madison remand. et unpublished (Wis. slip No. 89-0314 op. 26-27 Ct. 1990) 15, J., (Sundby, March dissenting).
Í—I HH A that, review of the regardless record convinces me applied, of the standard the trial court should not have employed the extreme sanction of dismissal Johnsons. The had a property Johnsons interest their of protected cause action which process the due Zimmerman, Logan 422, (1982). clause. 455 U.S. 427 They could deprived not be property that interest without evidence no merit or imposed bad faith. "If solely orders, for to obey failure without evidence warranting a finding faith, no merit bad the sanc- tion of . striking pleading . . process denies due Bank, law." Dubman v. North Shore 597, 2dWis. (1977). 249 N.W.2d In its September 1988 memorandum decision the trial court found: plaintiffs "The actions of the have been neither They nominal nor technical. have been sub- egregious stantial and which justification has not provided." added.) been (Emphasis Mr. and Mrs. John- son they testified provided lawyers had their all the materials that they provide. were asked to Mrs. Johnson, when asked whether she knew she had the right lawyers, to change responded: "You in your believe attorney, you, don't you when hire him in him? and trust . . ." She many, testified that many had contacts attorneys with their in an get effort case tried. Mr. Johnson testified he had considered changing attor- neys gotten but there had to be too much involvement with the case. The Johnsons consulted two other attor- neys possible about a conflict of interest in continuing attorneys have their represent them on the motions for Ultimately, sanctions. attorney the lead from withdrew firm, and the firm represent continued to the John- sons and made efforts bring the case to trial. There- *15 fore, the trial court's finding that the actions of the plaintiffs had been substantial and egregious clearly is erroneous. If lay anywhere, the fault lay it with the Johnsons' attorneys.
The trial
apparently
believed that
the John-
required
sons were
accept personal
responsibility for
actions,
their attorneys'
even to the extent of suffering
dismissal,
extreme
of
sanction
although they were
completely blameless. This is not the law. See Paschong
Hollenbeck,
415, 423-24,
Wis. 2d
108 N.W.2d
(1961)
672-73
(generally,
mistake,
neglect,
or omission
attorney
client).
is
imputed
not
to the
Dismissal
only
warranted
plaintiff
where the
bears some degree of
responsibility
misconduct,
for counsel's
Dunbar v. Tri
angle
Co.,
Lumber
Supply
126, 128-29 (3rd
and
816 F.2d
1987),
Cir.
or is personally culpable, Snead v. Automa
Industries,
Inc.,
tion
(D.C.
1984).
Í—I HHhH I plaintiffs' further conclude that counsel were not guilty of bad faith The egregious conduct. record dis- closes that both the Johnsons' Sperry's attorneys' discovery process used the to frustrate rather facili- than discovery. This tate unfortunate by condition was noted the trial court its July 13, memorandum decision of when the court considered motions counsel for parties for all sanctions against opposing parties alleged failures to scheduling orders. The court "Judging said: from the recent commu- Court, from the nications counsel have been no more in developing provi- successful this lawsuit a civil and dent manner than past." have The trial court strongly urged "in attorneys that the their own interest" agree consider a new scheduling dispo- order and compel sition of the discovery. motion August 17, minutes hearing *16 attorneys reveal that the put did the agree- on record an experts depositions. ment relative to Unfortunately, and agreement appear does not in the record. The John- attorneys however, sons' agreed, to adjourn sixty days their motion compel to answers to their interrogatories.
Despite the uncoopera- alleged Johnsons' counsel's tiveness, the deposi- defendants were able to take the witnesses, expert tions of lay numerous and including the Johnsons' accident John- expert, reconstruction Mr. treating physician, son's employees of the Johnsons presumably who could contribute information as the involving accident Mr. Johnson. September its 1988 memorandum decision
the trial court found special the information as to damages provided by the Johnsons' counsel "was in great measure of no value in determining what plain- asking why." for and This finding is also tiff^] [were] clearly erroneous. Prior decision, to the court's over 1,400 pages of documents produced, had been some of which were introduced as exhibits in the depositions that the defendants took of the expert Johnsons' lay witnesses. These included the Johnsons' documentation of their damage claims. At the time the trial court dis- action, missed this possession defendants were in all the information needed to defend Johnsons' case. It was necessary not to dismiss the action because of counsel's failure to make all of the expert Johnsons' witnesses available for discovery. The trial court could have permit refused to these witnesses testify at trial.
All frequently, too personality differences between attorneys disrupt the progress litigation and the inno- I cent client suffers. empathize with the trial court's attempts to mediate the attorneys conflicts between the However, which arose this case. progress litigation age, this that seems come with the terri- tory. Nonetheless, when these unfortunate situations develop, the trial imposing court must consider sanc- protect tions which will integrity pretrial pro- depriving cedure without the innocent client his her cause of action. appellate courts do not look ''[T]he favorably on if prejudice dismissal with there are lesser purpose sanctions that vindicate the of the rules desire to avoid court congestion. Thus dismissals with Miller, prejudice Wright supra, are often set aside." & (footnotes omitted). sec. at 203
HH > reasons, For I these would reverse the judgment and remand the cause trial court to determine whether sanctions other protect than dismissal will the integrity judicial process without sacrificing the Johnsons' cause of action.